The Equal Employment Opportunity Commission (EEOC) is the Federal agency responsible for enforcing the following employment laws: Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). Employees must file an EEOC Charge and await a determination before filing suit under these laws.
Ordinarily, the EEOC receives a call from an employee and assists the employee in filing a Charge against the employer. The EEOC then advises the employer of the Charge and invites the employer to mediate the charge or provide exculpating evidence. Whether to mediate under the EEOC’s rules and whether to accept an offered settlement at mediation should be reviewed with counsel to avoid unexpected consequences.
If the case is not resolved immediately, the employer’s defense of the EEOC Charge should be pro-active. Counsel should be involved. Employers often await requests for information and simply respond to the EEOC’s requests for documents. While this method may work, it is placing too much responsibility to exculpate your company on an EEOC investigator who doesn’t know you and who may never speak with anyone involved – except the Charging Party (the employee). This is dangerous.
The EEOC may dismiss the case based on technical reasons raised by the employer such as that the employer does not have a sufficient number of employees under the applicable statute or the employee has named the incorrect entity. Technical reasons for dismissal are ideal, because, practically speaking, the claim often ends there.
If there are no successful technical defenses raised by the employer, the EEOC will make a determination based on the merit or will advise the parties that it ran out of time to investigate the claim.
The determination may be that there is probable cause to find that the employer discriminated (a bad finding) or that there was not sufficient evidence presented to the EEOC to find discrimination (a good finding).
The determination will be sent to the employer and the employee. Either party may seek a review of the determination, but these reviews seems to be very cursory and unlikely to change the original finding. The parties may engage in EEOC conciliation, but the EEOC’s offered agreement will likely contain undesirable provisions and should be reviewed with counsel.
Regardless of the EEOC’s finding, if there is no settlement, the employee will then have the legal right to file suit against the employer within a specified time period (usually 90 days). The EEOC prerequisite has been satisfied. On a rare occasion, the EEOC will actually become the counsel for the employee and will file suit against a very unlucky employer. In most cases the employee is left to find an attorney or left the employee’s right to sue expire.
Plaintiffs’ attorneys, who usually work on a contingency basis, will often decline cases in which the EEOC has found in favor of the employer. Therefore, prevailing at the EEOC can save an employer from a potentially costly lawsuit. Losing at the EEOC level will often result in a lawsuit. If a lawsuit is filed within the specified time period, the employer must defend it like any other suit. If the employee misses the deadline and fails to convince a court to excuse that delinquency, the employee has forfeited the right to sue the employer under the laws enforced by the EEOC for the matter set forth in the Charge. However, the employee’s right to sue the employer under laws not enforced by the EEOC, such as defamation or battery, are not impacted by this process. Practically speaking, an employee who does not sue within the 90 day right to sue period usually drops the claim.
In addition to or as an alternative to the EEOC, employees may file charges with the Florida state agency responsible for enforcing the state’s version of the federal laws, the Florida Commission on Human Relations (FCHR). Employees can dual file charges under the EEOC and the FCHR. Additionally, some counties, including Sarasota and Collier, have local versions of the EEOC, which are intended to review local ordinances prohibiting discrimination and harassment. Sarasota’s ordinance is less than a year old and will likely be tested over the next couple of years.
Employers are strongly urged to seek the help of employment counsel upon the receipt of any Charge. A pro-active approach may save time and money by avoiding suit.